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Wilkins v. Montgomery

United States Court of Appeals, Fourth Circuit

May 5, 2014

DENISE C. WILKINS, Individually and as Personal Representative of the Estate of Justin Lamar Davis, Plaintiff -- Appellant,
VICKI MONTGOMERY, Director, Central State Hospital, in her individual and official capacities, Defendant -- Appellee, and CENTRAL STATE HOSPITAL; THE COMMONWEALTH OF VIRGINIA; UNIDENTIFIED EMPLOYEES OF CENTRAL STATE HOSPITAL, in their individual and official capacities, Defendants

Argued: March 18, 2014.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. (3:12-cv-00152-JAG). John A. Gibney, Jr., District Judge.


Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER, Washington, D.C., for Appellant.

John David Gilbody, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.


Kenneth T. Cuccinelli, II, Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, Peter R. Messitt, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Before GREGORY, WYNN, and THACKER, Circuit Judges. Judge Thacker wrote the opinion, in which Judge Gregory and Judge Wynn joined.


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THACKER, Circuit Judge:

Appellant Denise C. Wilkins (" Appellant" ) appeals the district court's orders striking her expert witness; denying her second motion to amend her complaint; and granting summary judgment to Appellee Vicki Montgomery, Assistant Director for Clinical Administration at Central State Hospital. Appellant brought this action against Montgomery after her son, Justin Lamar Davis, was murdered by another patient at Central State Hospital. She filed three claims: grossly negligent supervision, gross negligence under the Virginia Wrongful Death Act, and a 42 U.S.C. § 1983 claim for supervisory liability.

The district court struck Appellant's expert witness because he was disclosed in an untimely fashion; denied Appellant's second motion to amend her complaint to add two defendants because such amendment would be futile; and finally, concluded there was insufficient evidence to support the claims against Montgomery, who was an assistant director in charge of administrative matters at the time of Davis's death. For the reasons set forth below, we affirm.



On January 5, 2010, Justin Lamar Davis was transferred to Central State Hospital (" CSH" ), an inpatient facility providing treatment for patients with mental illnesses who are referred by the court system. On February 16, 2010, George Phillips was admitted to CSH while waiting to be prosecuted for attempted capital murder. Both Phillips and Davis were housed in the forensic unit, Ward 39-8.

CSH had a policy whereby staff would issue 24-hour reports (also called " Administrator On Duty" or " AOD" reports) regarding

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patient activity. See J.A. 355-68.[1] AOD reports during the week of February 21, 2010, reflect that Davis struck a staff member in the face and hit another patient. On February 24, 2010, Phillips reported feeling threatened by Davis, and Phillips stated he " will not give [Davis] another warning and he will end up flying out of here in a helicopter to a hospital." Id. at 362. Phillips told the staff that he " could get a pen out of a staff's pocket if he wanted and harm [him]self or anyone else." Id.

The next day, on February 25, 2010, Phillips and Davis had an altercation in the gymnasium. Phillips attacked Davis from behind, but Davis was not injured. The AOD report, which was issued the following day on February 26, explained that Davis " feels others want to harm him and wanted to be moved off the unit." J.A. 365. It also stated that Dr. Sridhar Yaratha, the psychiatrist on Davis's treatment team at CSH, was " aware" of Davis's desire to move. Id. In addition, the report stated that after the altercation, Phillips told staff " he was tired of Mr. Davis and that he could have easily snapped his neck." Id. On the evening and night of February 25, Phillips was " monitored constantly by staff and behavior documented [on] every shift." Id. Indeed, on that day, and for at least one week prior, Phillips was on suicide observation status (" SOS" ), violence observation status (" VOS" ), and escape observation status (" EOS" ), which required " 15 minute[] monitoring checks by assigned staff." Id. at 356, 373.

On February 27, 2010, Davis was also on VOS and also required 15 minute checks. The charge nurse, Lawrence Harris, assigned to Essence Thompson, Forensic Mental Health Technician, the duty of carrying out the 15 minute checks that night. However, rather than conducting the required checks, both Harris and Thompson were watching television in a nearby room. Between 9:36 p.m. and 9:56 p.m. that night, Phillips left his room, entered Davis's room, and proceeded to strangle Davis to death in his bed. It was not until the following morning, February 28, that another staff member discovered that Davis was dead.

An investigation by the hospital concluded that " [s]taff [n]eglect" led to Davis's murder, and found that " Thompson . . . remained seated in the chair directly facing the television" on the night of Davis's death, which " provided [] Phillips the opportunity to do serious harm to [] Davis." J.A. 377. In addition, the hospital report concluded Harris " failed to provide the necessary supervision and leadership required to ensure [] Thompson was at her assigned monitoring post and carrying out her assigned duties. Instead, Mr. Harris sat one seat from [] Thompson directly facing the television." Id.


Exactly two years after Davis's death, February 27, 2012, Appellant -- Davis's mother -- filed suit against CSH, the Commonwealth of Virginia, Vicki Montgomery (" Appellee" ), and " Several as of Yet Unidentified Employees of [CSH]." [2] See Wilkins v. Cent. State Hosp., No. 3:12-cv-00152-JAG (E.D. Va. Feb. 27, 2012), ECF No. 1. The original complaint contained

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three counts: wrongful death based on gross negligence, grossly negligent supervision, and a 42 U.S.C. § 1983 claim for supervisory liability.

On April 4, 2012, Appellant filed the First Amended Complaint (" FAC" ). In the FAC, Appellant dropped the state defendants, and the only defendants remaining were Appellee (in her individual and official capacity), who was incorrectly listed as " director" of the CSH, and " Several as of Yet Unidentified Employees of [CSH]." J.A. 9. The FAC contained the same three counts and allegations as the original complaint.

On April 11, 2012, Appellee filed a motion to dismiss, but withdrew that motion on May 4, 2012, when she filed a motion for summary judgment. In the motion for summary judgment, Appellee argued that because she was not director of CSH at the time of Davis's death, she had no supervisory responsibility or authority over any security personnel, treatment staff, or medical staff.

The district court entered a pre-trial order and set the trial date for February 19, 2013. Appellant's Rule 26(a)(2) expert disclosures were to be produced by October 22, 2012; however, this deadline was moved back to November 21, 2012, by agreement of the parties. The deadline for motions challenging experts was December 21, 2012. On November 21, Appellant provided the name of her purported expert witness, Dr. Pogos H. Voskanian, along with a curriculum vitae, but no written report. Almost two weeks after the November 21 deadline for Rule 26 disclosures -- which had been agreed to by Appellant -- on December 4, 2012, Appellant disclosed what she called a " preliminary report" by Dr. Voskanian.[3] The preliminary report, as its name suggests, was only one page and simply contained a list of the materials the expert reviewed, and two sentences of opinion:

Based on review of the above listed documents, it is my opinion to a reasonable degree of medical certainty that the care and treatment provided to Mr. Justin Lamar Davis fell substantially below an acceptable standard of care. Administration of the hospital failed to provide adequate services and supervision; and members of the treatment team failed to provide adequate monitoring, safety and treatment, amounting to deliberate indifference to the patient's needs and premature death of Mr. Justin Davis.

J.A. 99.

On December 13, 2012, Appellee filed a renewed motion for summary judgment and a motion to exclude Appellant's expert witness. On December 21, 2012 -- now one month after the expert disclosure date agreed to by Appellant, and on the court's deadline for filing motions to exclude experts -- Appellant filed an additional, nine-page expert report by Dr. Voskanian.

The district court held a motions hearing on February 7, 2013, and granted the motion to exclude Dr. Voskanian the following day. See J.A. 268-70 (the " February 8 Order" ). Appellant then filed a Rule 59 motion to alter or amend the February 8 Order.

In the meantime, on December 27, 2012, Appellant filed a motion for leave to file a second amended complaint. She sought only to add as defendants Dr. Charles Davis -- the actual director of CSH at the time Davis was murdered -- and Dr. Yaratha.

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On April 10, 2013, the district court held a hearing on the remaining outstanding motions, including the motion to amend. The court ruled from the bench, granting the motion for summary judgment, and denying the motion to amend the complaint and the Rule 59 motion to alter or amend its order excluding Dr. Voskanian. A formal order issued the following day. See J.A. 663 (the " April 11 Order" ).

Appellant filed a timely notice of appeal of the February 8 and April 11 Orders.


We review the district court's exclusion of a plaintiff's expert witness, its denial of a motion to amend the complaint, and its ruling on a Rule 59 motion to alter or amend for abuse of discretion. See S. States Rack & Fixture, Inc. v. Sherwin--Williams Co.,318 F.3d 592, 595 (4th Cir. 2003); Laber v. Harvey, 438 F.3d 404, 428 (4th Cir. 2006); Sloas v. CSX Transp., Inc., 616 F.3d 380, 388 (4th Cir. 2010). As to the motion to amend the complaint, we review the district court's analysis ...

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